ILNews

Sex offender’s home ownership doesn’t impact residency restriction

Back to TopCommentsE-mailPrintBookmark and Share

A convicted sex offender who argued that a probation condition prohibiting him from living within 1,000 feet of a school is unduly restrictive on his property interest in a home he owns lost his appeal before the Indiana Court of Appeals.

Mark Gaither committed child molesting in 1995 and 1996 but wasn’t convicted until August 2008. As part of his probation and parole, he isn’t allowed to live within 1,000 feet of school property. He owns a home in Muncie that is within 1,000 feet of a middle school, and he wants to live there. The statute requiring that sex offenders on probation/parole be prohibited from living within 1,000 feet of a school was enacted in 1999.

Gaither claims because he committed his offenses before the statutes were enacted, he isn’t subject to them and the residency restriction placed on him violates the ex post facto clause of the Indiana Constitution.

Even though his probation has since expired, the COA ruled on the case because of public importance.

Gaither tried to distinguish his case from Hevner v. State, 919 N.E.2d 109 (Ind. 2010), in which the Indiana justices ruled that Hevner, who had been convicted of a sex offense, was subject to conditions of probation, including living within 1,000 feet of a school. Gaither claimed that because he owned his home before he committed the child molesting, he should be allowed to stay in it.

The justices “made no distinction between ownership and mere residency, and the fact that an offender owns a home in which he is not allowed to reside during his term of probation or parole is immaterial in determining whether a condition of probation or parole is related to an offender’s rehabilitation, while protecting the public,” wrote Judge John Baker.

The appellate court ruled in Mark Gaither v. Indiana Dept. of Correction, et al.,18A02-1111-MI-1073, that Indiana courts have held that prohibiting a sex offender from living within 1,000 feet of a school as a condition of probation is reasonably related to the offender’s rehabilitation and is permissible.

 

ADVERTISEMENT

  • SOR
    I read and I have the article that states that the Indiana Supreme Court ruled unaniousmly the sex offender registration is punitive (puinishment) therefore it is doublr jeopardy!
  • Rehab
    If someone is convicted of possession of child porn but never did anything else or caused harm to a child or any other person in their 40+ years, what type of rehabiltation do they need? Should they have their eyes poked out?

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

ADVERTISEMENT